IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ORDER

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1 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ZAJAC & ARIAS, LLC ERIC G. ZAJAC, Plaintiffs, DECEMBER TERM, 2011 No Control No LEONARD J. RIVERA MACELREE HARVEY, LTD., Defendants, WEINSTEIN SCHLEIFER KUPERSMITH, P.C. KLINE & SPECTER, P.C. MARIA LAURA FABIOLA SANTOS FONSECA,. -.. ' Additional Defendants. ORDER AND NOW, this 24th day of September upon consideration of Additional Defendants, Kline & Specter, P.C. Maria Laura Fabiola Santos Fonseca's Preliminary Objections to the Amended Joinder Complaint fil ed by Defendants Leonard J. Rivera MacElree Harvey, Ltd. Against Additional Defendants, Kline & Specter. P. C. Maria Laura Fabiola Santos Fonseca, any responses thereto, as expjajned in the attached memorum, it is hereby ORDERED that the Preliminary Objections are SUSTAINED. the Zajac & Arias, Lie Etaf-ORDOP Ill II IIIII II Ill COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) C. HART 09/26/

2 Amended Joinder Complaint filed against Kline & Specter, P.C. Maria Laura Fabiola Santos Fonseca is hereby dismissed. BY THE COURT:

3 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ZAJAC & ARIAS, LLC ERIC G. ZAJAC, Plaintiffs, DECEMBER TERM, 2011 No LEONARD J. RIVERA MACELREE HARVEY, LTD., Defendants, Control No WEINSTEIN SCHLEIFER KUPERSMITH, P.C. KLINE & SPECTER, P.C. MARIA LAURA FABIOLA SANTOS FONSECA, Additional Defendants MEMORANDUM OPINION By: Honorable Albert John Snite, Jr. PROCEDURAL HISTORY Before the court are the Preliminary Objections to the Amended Joinder Complaint of Leonard Rivera, Esq. MacElree Harvey, Ltd. against Additional Defendants Kline & Specter, P.C. Maria Laura Fabiola Santos Fonseca, filed on July 19, Defendants Leonard Rivera MacEirce Harvey, Ltd. filed Defendants' Response to the preliminary objecti ons on July 31, 2012.

4 Kline & Specter Fonseca filed a Reply on August 8, FACTUAL HISTORY This case concerns a dispute over referral fees associated with a personal injury case. Specifically, these Preliminary Objections stem from the fees related to the personal injury claims of Additional Defendant Maria Laura Fabiola Santos Fonseca ("Ms. Fonseca") against various parties arising from the death of her husb, Daniel Lopez Ortiz ("Mr. Ortiz"), in a motor vehicle accident that occurred on April 13, In April 2009, Weinstein, Schleifer & Kupersmith, P.C. ("Weinstein Schleifer") Eric G. Zajac of Zajac & Arias, LLC ("Zajac & Arias") were engaged as counsel to the Estate of Mr. Ortiz, eventually commenced suit. 1 The original action was brought in the Court of Common Pleas of Philadelphia Country. Pennsylvania under docket number on May 20, In April 2010, Ms. Fonseca discharged Weinstein Schleifer Zajac & Arias. Shortly thereafter, Defendant Leonard Rivera ("Mr. Rivera") of MacElree Harvey, Ltd. ("MacElree Harvey") referred Ms. Fonseca to Additional Defendant Kline & Specter, P.C. ("Kline & Specter"). Ms. Fonseca entered into a contingent fee agreement with Kline & Specter with the assistance of Mr. Rivera MacEiree Harvey, providing for an attorney's fee of forty percent (40%) of the net recovery. Kline & Specter MacEiree Harvey then entered into a written agreement via which stated that Kline & Specter would retain not less than sixty percent (60%) of the contingent fee, MacElree Harvey would receive up to f01ty (40%) of the contingent fee, subject to any possible claim made by Weinstein Schleifer Zajac & Arias. In December 2010, Weinstein Schleifer filed suit against Mr. Rivera MacElree Harvey seeking to recover fees associated with Ms. Fonseca's case. In July 2011, a Praecipe to Discontinue action was filed. The case at bar was filed by complaint on December by Plaintiff Zajac & Arias against Defendants Rivera MacElree Harvey, again seeking a referral fee. In May 2012, Defendants Rivera MacElree Harvey joined Additional Defendants Fonseca Kline & Specter. An amended joinder complaint was tiled on July 2, The 1 I am assuming that the original fee agreement did not include a provision for compensation in the event that the firm was discharged.

5 joinder complaint alleged that Additional Defendants were responsible for the fees /or indemnification. These Preliminary Objections followed. DISCUSSION I am sustaining the current Preliminary Objections, concluding that Additional Defendants in the instant action were improperly joined, as there could not be a finding of liability against either Ms. Fonseca or Kline & Specter. The underlying claim fi led by Plaintiffs Zajac & Arias against Defendants Rivera MacEirec I Iarvey is composed of two arguments: (i) intentional interference with contractual relationship, (i i) unjust enrichment quantum meruit. According to the Complaint, Plaintiffs believe that Defendants sought out Ms. Fonseca with the knowledge that she was already represented by Weinstein Schleifer /or by Zajac & Arias, met with her in order to solicit her as a client persuade her to discharge Weinstein Seheifer? Plaintiffs base this belief on the lack of prior complaints expressed by Ms. Fonseca her refusal to directly communicate with Weinstein Schliefer or Zajac & Arias following her contact with MacElree Harvey. This is. essentially, a tort-based claim for interfering with the contractual expectation of Zajac & Arias, with MacElree Harvey being the tortfeasor. As Additional Defendants point out, joinder of additional defendants is permitted if the party joined may be solely liable on the underlying cause of action against the joining party, or may be liable to or with the joining party on any cause of action arising out of the transaction upon which the underlying cause of action is based. There have been no facts averred to support a finding of li ability against Additional Defendants Kline & Specter or Ms. Fonseca. There is no cause of action here against Kline & Specter, as MacEiree Harvey Kline & Specter's agreement defines any respective liability. The agreement between MacEiree Harvey Kline & Specter. regarding the 60/40 split of the net collective recovery of Ms. Fonseca's contingent fee. limits any payment out of Kline & Specter's portion. It was requested by Kline & Specter that the 40% attorney's fee in the underlying claim was to be held in escrow until the current dispute is resolved. It was, in fact. ordered by the Orphan s Court on June 15, 2012 that this disputed attorneys' fee be kept in Kline & Specter, P.C.'s escrow account pending resolution of this dispute. 3 2 See Complaint,]22 (attached to Preliminary Objections as exhibit E). 3 See Order Approving Allocation Distribution of Settlement Proceeds, Control No

6 There is. further, no alleged claim by Plaintiffs against Ms. Fonseca. 4 Plaintiff is suing for tortious interference is seeking damages that include its "share" of the original 40% contingent fee. Plaintiff is also seeking a quantum meruit recovery from MacElree Harvey. As plead, it is not a quantum meruit claim against the termer client, Ms. Fonseca. A quantum meruit recovery by Plaintiff firm Zajac & Arias against Defendant firm MacElree Harvey would potentially be payable out of defendant 's portion of the contingent fee. 5 Again, Kline & Specter' s (60%) agreement with MacElree Harvey (40%) limits this recovery, the 40% set-aside is now court-ordered. Lastly, MacElree Harvey Kline & Specter have, per their agreement, agreed to indemnify Ms. Fonseca for any fees expenses owed to Weinstein Schliefer, 6 thus further negating any liability directly from Ms. Fonseca on a potential quantum meruit claim as the former client. Plaintiffs therefore have no actual dispute or claim against either Ms. Fonseca or Kline & Specter, neither do defendants. CONCLUSION In conclusion, 1 am of the opinion that Additional Defendants Fonseca Kline & Specter's Preliminary Objections to Amended Joinder Complaint Against Additional Defendants will be sustained, the Amended Joinder Complaint filed against Kline & Specter, P.C. Maria Laura Fabiola Santos Fonseca is dismissed, as there is no actual dispute that involves either Additional Defendant. BY THE COURT: 4 Although some language in Count II of the Complaint appears to be asking for quantum meruit, a claim for quantum meruit is more properly a claim by the discharged attorney against the client. To the extent that MacEiree Harvey /or Kline & Specter have agreed to " indemnify" the client with respect to any quantum meruit claim against Ms. Fonseca (, again, it is noted that no such claim has been made by the discharged attorney), the court ordered escrow ofthe 40% of the fee pending resolution of this case is the maximum liability under~ theory of recovery. 5 I am not cuttently making predictions on damages. whether quantum meruit would be avai lable damages if the tort is proven at trial. 6 See Defendant's Answer to Amended Complaint ~52.